Are high-risk and district No Child waivers illegal?

The department should be monitoring how states put waiver provisions into action, said Anne Hyslop, a policy analyst for the New America Foundation’s education policy program. States wanted the flexibility from NCLB and made promises to earn that flexibility.

Neither she nor the states themselves are questioning the legality of the feds’ moves. A spokeswoman for Oregon’s Department of Education wouldn’t comment on the legality of the department’s decision. The Kansas Department of Education isn’t questioning it, spokeswoman Denise Kahler said. And Washington understands the conditions that come with a waiver.

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“We have no opinion on the legality of the high-risk designation,” said Nathan Olson, spokesman for Washington’s education department. “We accept that there are strings attached to this year’s waiver because of our state law, and we will be working to change that state law when our Legislature meets again in January.”

NCLB also distinctly allows Duncan to issue waivers to local educational agencies. But some say Duncan didn’t make good on his word.

In February, Sen. Lamar Alexander (R-Tenn.) asked Duncan during a Health, Education, Labor and Pensions oversight hearing if he would waive NCLB provisions for districts in states that were denied waivers. Duncan said he preferred not to but didn’t rule the idea out.

When Duncan issued a collection of eight California districts a waiver this month, it was “absolutely and undeniably” an overreach, Hess said. “With that decision, Duncan truly breathed life into talk of him trying to turn the Education Department into a national school board.”

Hyslop and Bailey said the district waivers create two systems of accountability in California.

“How does this interfere with the accountability relationship between the state and the schools?” Bailey said. “The Education Department claims it doesn’t, but we know that these districts have different expectations and consequences from all the others in California.”

Perhaps the issue is with the broad authority the Education Department’s has to issue waivers in the first place. If the federal government didn’t closely monitor states to which waivers were issued, it could open itself up to criticism, said John Bailey, executive director of Digital Learning Now!, an initiative of former Gov. Jeb Bush’s Foundation for Excellence in Education.

“It illustrates the slippery slope with waivers and establishing new conditions,” he said. “Every step is a new claim of authority that is gray at best.”

Much of the overreach outcry is just confusion, said Chad Aldeman, a senior policy analyst at Bellwether Education Partners.

“Secretary Duncan said he preferred to work with states because states have more authority, and the feds have a closer relationship with states than districts,” he said. “And in California’s case, the state still has responsibility for setting standards, adopting assessments, and identifying low-performing schools. It’s just that now those districts have more flexibility about how they will intervene in low-performing schools.

“That’s an important distinction that seems to be missing from the current conversation.”